A Careless Attack on the UN’s Commission of Inquiry on Syria

Over on Lawfare, Lt. Col. Shane Reeves and Lt. Col. Ward Narramore have published a critique of the latest report of the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) to the United Nations Human Rights Council. The authors claim that the COI’s legal analysis of a U.S. airstrike is “flawed,” “faulty,” and “erroneous,” that it “ignores” the law and applies a “fabricated standard.” Indeed, the authors write that the COI “damages its own credibility” and “undercuts the UNHRC’s authority to condemn truly illegal behavior.”

Thankfully, the authors’ concerns are misplaced. The COI’s legal analysis is just fine, and its credibility is safe and sound. I’m afraid that I can’t say the same for the authors. As far as I can tell, all their legal claims are false, confused, or equivocal.

The authors seem satisfied with the COI’s extensive findings regarding unlawful (mostly criminal) conduct by Syrian forces and by Daesh. However, they strenuously object to the COI’s sole finding of unlawful (though not criminal) conduct by U.S. forces.

On March 16, 2017, U.S. forces carried out an airstrike in the Syrian village of Al-Jinah. The effects of the attack are disputed. U.S. Central Command (CENTCOM) insists that Al Qaeda operatives were meeting inside the building and that the airstrike killed only one civilian, identified as such because he was “smaller-in-stature.” The COI found no information indicating that such a meeting was taking place. Instead, interviews with residents, relatives of victims, and first responders indicate that the building was the regular site of religious lessons, every Thursday evening, between sunset prayer and night prayer. Although the COI could not rule out the possibility that some members of Hay’at Tahrir al-Sham attended this religious gathering, it found that the building was not being used for military purposes and that most participants were civilians. The COI determined that the airstrike killed 38 people, including one woman and five boys, and injured 26 others.

Importantly, while the effects of the attack are disputed, several procedural failures leading up to the attack are not. According to Brigadier General Paul Bontrager, deputy director of operations at CENTCOM,

the target engagement authority was not made aware that [an adjacent building] was actually a mosque or that this complex of buildings under construction had, under normal conditions, a general religious purpose.
…
Most frustrating was that some of the intelligence team did know this was a religious complex, but the analysis did not get to the no-strike list nor to the target engagement authority.
A more deliberate pre-strike analysis should have identified that the target was part of a religious compound. Having that information could have been relevant to the target engagement authority’s decision to strike.

In an admirably candid statement, General Bontrager acknowledged that

the failure to identify the religious nature of these buildings is a preventable error. This failure to identify the religious purpose of these buildings led the target engagement authority to make the final determination to strike without knowing all he should have known. And that is something that we need to make sure does not happen in the future.

Based on such statements, the COI determined that

the United States targeting team lacked an understanding of the actual target, including that it was part of a mosque where worshippers gathered to pray every Thursday. Moreover, although the targeting team had information on the target three days prior to the strike, it did not undertake additional verification of target activities in that period, which would be expected were it known to be a mosque. The Commission therefore concludes that United States forces failed to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in violation of international humanitarian law.

This legal conclusion might seem unassailable. As CENTCOM acknowledges, the intelligence team should have informed the targeting team that the building was part of a religious complex. Had they done so, the targeting team would have been obliged to take additional steps to confirm the purpose of the gathering and the identities of those gathered. It follows that United States forces failed to take all feasible precautions to avoid or minimize harm to civilians.

Nevertheless, Reeves and Narramore assail away. Rather than attempt to summarize their argument (such as it is), I’ll address each of their legal claims in turn.

First, the authors write that “[t]he law applicable to the 16 March airstrike is Additional Protocol I (AP I), Article 57(2)(a),” which they go on to quote at length.

This claim is false. The United States is not a party to AP I. Accordingly, the law applicable to the airstrike was customary international humanitarian law.

(For what it’s worth, AP I applies only to international armed conflicts. For its part, the United States denies that it is in an international armed conflict with Syria. So, even if the U.S. were a party to AP I, its application to the airstrike would be far from clear (though see here).)

Second, the authors write that “the COI applies a non-existent legal standard to the airstrike.” They later describe the COI’s legal standard as “fabricated,” “constructed,” and “novel.”

This claim is also false. The International Committee of the Red Cross (ICRC) has determined that customary international humanitarian law imposes precisely the standard adopted by the COI:

In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.

The COI can hardly be accused of fabricating a legal standard endorsed by the guardian of international humanitarian law. If that isn’t good enough for you, the United States Department of Defense accepts the very same standard.

Third, the authors write that “the COI seems to replace the principle of proportionality []—which requires a commander to refrain from launching an attack if the incidental loss of civilian life would be excessive in relation to the concrete military advantage anticipated—with its own ‘minimize or avoid’ legal standard.”

This claim is confused. As the ICRC explains, the general precautions rule quoted above “is a basic rule to which more content is given by the specific obligations contained in [other rules of customary international humanitarian law].” One of these specific obligations requires that

Each party to the conflict must do everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

This specific precautionary rule does not “replace” the proportionality rule. Instead, the two rules work together toward a shared humanitarian aim. Combatants who do everything feasible to assess the effects of an attack may conclude that the attack would likely cause excessive incidental harm to civilians. They may then refrain from attack, thereby avoiding, or at least minimizing, incidental harm to such civilians.

Similarly, the U.S. Defense Department recognizes that feasible precautions in planning and conducting attacks may include “assessing the risks to civilians” and “cancelling or suspending attacks based on new information raising concerns of expected civilian casualties.” One obvious means of assessing risks to civilians is determining whether a building or complex normally serves a religious purpose. After all, such a determination would raise concerns of expected civilian casualties. Such concerns might warrant suspending an attack until additional information is gathered and available information is subjected to additional scrutiny.

Fourth, the authors write that the COI “attempts to impose an absolute requirement on commanders to avoid or minimize incidental loss of civilian life in targeting decisions.” The authors then assert that “applying the COI constructed legal standard, a commander would be prohibited from targeting the enemy leader regardless of the expected military advantage—even if those gains could hasten the end of the conflict.” The authors wrap up by accusing the COI of “a common conflation perpetrated by those who attempt to usurp the LOAC by injecting some version of human rights laws.”

These claims are all false. It should be self-evident that the obligation to take all feasible precautions is not “absolute.” It is universally accepted that “[f]easible precautions are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Put another way, attackers must balance the humanitarian reasons to take a precaution against the military reasons not to take that precaution. So, to take the authors’ example, if “the leader of the entire enemy war effort is in a crowd of civilians,” then the military reasons to attack without delay must be weighed against the humanitarian reasons to take further precautions. If the leader is about to escape, and further risk assessments are unlikely to find that an attack would violate the proportionality rule, then this precaution would not be required. It is hard to see any conflation, attempted usurpation, or injection of human rights laws at work. These are just basic rules of international humanitarian law, and there’s no indication that the COI misunderstood or misapplied them.

Fifth, the authors invoke the “Rendulic Rule,” claiming that “[c]ommanders’ actions are not judged by the ultimate result but rather by the reasonableness of their decision based upon contemporaneous knowledge. It is important [to] note, [that] application of the Rendulic Rule is only necessary if a commander makes a mistake.” On this view, if the building was in fact hosting a religious gathering, then we must judge the reasonableness of the decision to attack based on the commander’s contemporaneous knowledge. In contrast, if the targeted building was in fact hosting an Al Qaeda meeting, then we may not judge the reasonableness of the decision to attack at all.

This claim is false, and rests on a confusion. The obligation to do everything feasible to assess the effects of an attack is an obligation of conduct, not an obligation of result. Commanders who make insufficient effort to assess the effects of their attacks violate their precautionary obligations even if, through sheer luck, no protected persons or objects are harmed.

Notably, the “Rendulic Rule” arose in the context of a war crimes prosecution. It is plausible to maintain that failures to take feasible precautions do not constitute war crimes unless they result in mistakenly targeting or excessively harming protected persons or objects. However, it is not plausible to maintain that failures to take feasible precautions do not violate international humanitarian law unless they result in mistakenly targeting or excessively harming protected persons or objects. Obviously, not all violations of international humanitarian law constitute war crimes.

Finally, the authors write that, even if the building was a protected object, “the commander still has not violated the LOAC unless the commander acted unreasonably given the available information.”

This claim is, at best, equivocal. A commander violates the LOAC if she either (a) fails to do everything feasible to assess the effects of an attack or (b) acts unreasonably given the information made available by such efforts. In contrast, the authors seem to think that a commander violates the LOAC only if her decision to attack is unreasonable given her “contemporaneous knowledge,” that is, given whatever information happens to be presented to her prior to the decision. That view is flawed. The LOAC regulates both the decision to attack and the decision to demand additional information prior to attack.

This claim also seems misdirected. After all, the COI did not conclude that the commander who ordered the airstrike violated international law. Instead, the COI concluded that United States forces failed to take all feasible precautions to avoid or minimize harm to civilians. Needless to say, international law imposes obligations on States, and on their armed forces as collective entities, as well as on individual members of their armed forces.

For his part, General Bontrager insists that the U.S. internal investigation did not find “any negligence on [the part of] any individual or group of individuals” let alone “anything malicious at all.” That finding, even if true, would not contradict the COI’s conclusion that there was a collective failure to take feasible precautions for which the United States and its armed forces are collectively responsible, even if no individual is criminally responsible or otherwise legally accountable.

In closing, I should note that, in important respects, the authors also do a disservice to the U.S. military. In my view, General Bontrager should be applauded for candidly acknowledging the procedural failures that led up to this airstrike even as he maintains, rightly or wrongly, that the attack could have been lawfully carried out if all the relevant facts had been known. Arguably, it would have been easier to insist that there was, in fact, an Al Qaeda meeting, and that there was, in fact, only one civilian casualty. In other words, to argue that “all’s well that ends well.”

The U.S. military wisely chose not to follow this path. Sooner or later, procedural failures lead to unacceptable outcomes. Even if this airstrike turned out as the U.S. hopes, and not as the COI fears, the failure to take all feasible precautions in this case remains, in the words of General Bontrager, “something that we need to make sure does not happen in the future.”